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The Employment Standards Act (ESA) applies to employees.

An employee consists of an individual who:

– performs work for an employer for salaries

– supplies services to an employer for wages

– gets training from a company, if the ability in which the person is being trained is an ability used by the company’s staff members

– is a homeworker

– was a staff member

Effective March 21, 2024, an employee consists of an individual who performs work during a trial period for a company, if the abilities being assessed during the trial period are skills utilized by the company’s workers or could be utilized by staff members if there are no other staff members. For instance, where an employer of a dining establishment asks a job candidate to work a trial shift waiting tables to demonstrate their capability to perform the job, even where no work deal has actually been made to that candidate, the person is a staff member under the ESA.

The ESA does not use to independent professionals, volunteers or other individuals who are not covered under the ESA. An individual thought about a staff member may be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– holiday with pay

– notification of termination or termination pay

Under the ESA, employers are not permitted to deal with workers covered by the Act as if they are not workers. If a company misclassifies an employee in this way, a work standards officer can release a notice of conflict that results in a charge, a prosecution or both against the company.

Please note, the ESA offers minimum standards just. Some staff members might have greater rights under a work agreement, collective agreement, the common law or other legislation.

Find out more about staff member rights under the ESA.

How to inform who is a staff member

The relationship in between a private and business (or referall.us person) they are working for determines whether the person is a worker and entitled to protections under the ESA. A person might be considered a worker under the ESA when a minimum of a few of the following describes the relationship:

– the work the private performs is a crucial part of the service

– business chooses:- what the person is to do

– how much the individual will be paid

– where and when the work is carried out

If you’re unsure who is a worker under the ESA, call the Ministry of Labour, Immigration, Training and Skills Development’s Employment Standards Information Centre at:

– 416-326-7160

– toll-free at 1-800-531-5551

TTY 1-866-567-8893

The Information Centre can assist callers in several languages. They can give general info about who is a staff member however can not offer advice.

If you’re still unsure whether somebody is a staff member, please talk to a lawyer.

How to tell who is an independent professional

An independent contractor is somebody who is in company on their own. A person may be considered an independent professional, and not covered by the ESA, when at least a few of the following uses:

– the service can end the individual’s agreement for services, however can not discipline the individual

– the individual:- has the chance to make a revenue and has a threat of losing cash from the work

– determines how, when or where the work is performed

– chooses whether to subcontract some of the work

Example

Fariah works as a consumer service representative for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s office. She uses the company’s telephones and computers. She is paid $25.50 per hour. Her employment contract does not have an end date, although her company can fire or discipline her for bad efficiency. Her employment agreement states that she is an independent professional therefore she does not get overtime pay, trip pay or public holiday pay.

Fariah thinks she may actually be a worker and might be entitled to overtime pay, vacation pay and public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

An employment requirements officer examines her claim. The officer takes a look at the relationship between Fariah and the sales company and discovers that she is an employee

It does not matter that the employment agreement stating that she is an independent professional because the truths show she is an employee.

The employment standards officer orders the sales company to:

– pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as a worker.

– orders the employer to provide wage declarations and keep records

Employee or independent specialist: Common misunderstandings

A person may be considered a staff member even if:

– the individual and the organization agree (orally or in writing) that the person is an independent professional. It is the relationship in between the individual and the organization (or individual) that matters, not the label that is given to it

– the person:- charges the harmonized sales tax (HST).

– sends billings to business.

– uses their own vehicle for work purposes.

Volunteers

Volunteers are not staff members under the ESA. However, the fact that someone is called a “volunteer” does not identify whether that person is an employee and entitled to the protections of the ESA.

The main elements that figure out whether someone is a volunteer or a worker are just how much:

– business (or person) gain from the person’s services.

– the specific views the plan as being in pursuit of a living.

In family-run organizations, the question will frequently be whether the person is offering services in pursuit of a living or in service of the household.

If the individual is providing services to the household, rather than services in pursuit of a living, that person is most likely to be a volunteer.

The reality that no incomes were paid does not always imply that someone is a volunteer. The reality that there was some type of payment does not necessarily indicate someone is a worker. For instance, an honorarium might have been paid, instead of salaries.